Blood v. Hunt

Citation121 So. 886,97 Fla. 551
PartiesBLOOD et al. v. HUNT et al.
Decision Date16 April 1929
CourtUnited States State Supreme Court of Florida

Suit by Martha B. Hunt and another against Laura Blood, Norman W Blood, and others. Decree overruling a demurrer interposed by defendants named, and such defendants appeal.

Reversed.

(Syllabus by the Court.)

Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Touchton & Dinsmore, of Winter Haven, for appellants.

Huffaker & Edwards, of Bartow, for appellees.

OPINION

WHITFIELD P.J.

The bill of complaint herein, brought July 19, 1927, by Martha B Hunt and J. E. Hunt against Laura Blood and Norman W. Blood, her husband, and D. S. Story and Eloise N. Story, his wife, alleges, in substance, that complainants conveyed to said Laura Blood, a married woman, described lands, which was the separate statutory property of said Martha B. Hunt, a married woman; that, as a part of the consideration for said conveyance, Laura Blood, joined by her husband on December 16, 1925, executed their two promissory notes each for $5,000, payable on or before one and two years after date, respectively, with interest at 8 per cent. per annum, payable semiannually, 'and upon the same day and date and in order to secure the payment of the said notes executed and delivered to complainants a purchase money mortgage upon said premises.' 'That the first of said promissory notes matured and became due and payable December 16, 1926, and that the defendants have failed and refused to pay the said note and the interest that has accumulated thereon and that they have likewise failed and refused to pay the interest that has accrued on the second of said promissory notes. That there is now due complainants the principal sum of Five Thousand ($5,000.00) Dollars by virtue of the maturity of the first of said promissory notes, together with all interest that has accrued on both of said notes since the last payment of interest thereon; that the said notes represent a part of the purchase price of the said premises aforesaid and that the said Laura Blood purchased said premises to be added to and become a part of her separate property and that same became and remains a part of her separate statutory property, and that the said notes and mortgage were executed and delivered by the said Laura Blood for the benefit of her separate statutory property and as a part of the purchase price of the said property; that the said Laura Blood is seized and possessed of other described real property in the County of Polk and State of Florida, the said property being her separate statutory property, to-wit: (description stated); that in addition to owning the above mentioned and described real property the defendant, Laura Blood, is the owner of the following personal property constituting a part of her separate statutory estate, to-wit: (description stated) including a mortgage of the defendants, D. S. Story and Eloise N. Story, in favor of the said Laura Blood.'

The prayer is for an accounting to ascertain the amount due the complainants to include a reasonable attorney fee, and 'that the amount of such indebtedness be charged upon the separate statutory property, real and personal of the defendant, Laura Blood, hereinbefore described, and that the said property, or so much thereof as shall be necessary, shall be sold by and under the direction of this honorable court in satisfaction of the said decree, or that the rents, issues and profits of such property be sequestrated for the payment of said indebtedness, and that, pending the final decree the defendants, D. S. Story, and Eloise N. Story, be enjoined from paying to the defendants, Laura Blood and Norman W. Blood, or to either, any part of the said mortgage indebtedness due from them to the said defendants; and that complainant may have such other and further relief in the premises as the nature of the case may require.' The two notes and the mortgage are made a part of the bill of complaint.

Each of the notes contains the following: 'Should this note be collected by legal process or by an attorney, we will pay all cost of the same and a reasonable attorney's fee.' The mortgage contains a similar provision as to attorney fees.

Each note is signed Laura Blood and Norman W. Blood. The mortgage was executed by Laura Blood and Norman W. Blood, and contains an accelerating clause maturing the entire debt upon a default in the mortgagors' covenants.

A general demurrer to the bill of complaint interposed by Laura Blood and Norman W. Blood was overruled, and they appealed.

Even if this were a case in which the Constitution authorizes the married woman's separate real and personal property to be charged in equity and sold for the price of property purchased by her, and if the allegations of the bill of complaint be sufficient for the case, the Constitution does not provide for accelerating the maturity of the purchasemoney payments not yet due, or for attorney fees in the suit. The constitutional provision, section 2, art. 11, does not operate to supersede or to supplement the right to foreclose mortgage liens given by married women upon their separate property, as authorized by the statute; nor does such organic provision operate to enforce the payment of promissory notes of married women that are secured by mortgage, or to secure the payment of any notes as such. The organic section authorizes the separate property of a married woman to be charged in equity and sold, or the uses, rents, and profits thereof to be sequestrated, for the payment of amounts due by her in any one of the five specified classes of cases, each class being definitely stated in the section of the Constitution.

Complainants below seek to charge in equity the separate real and personal property of a married woman for the price of property purchased by her, claiming that right by virtue of section 2 of article 11 of the state Constitution of 1885. That claim of right is challenged, and the question presented requires a consideration of laws and proceedings antedating the Constitution of 1885.

At common law a husband had a freehold interest in the lands of the wife during the coverture, and his interest in such lands could be conveyed by him or subjected to his debts; the husband has during the coverture the right to the possession and control of the wife's real property, and the right to the rents and profits thereof. Marye v. Root, 27 Fla. 453, text 459, 8 So. 636. See 30 C.J. 526 et seq.; Tyson v. Mattair, 8 Fla. 107; 13 R. C. L. p. 1046 et seq.

At common law all personal property belonging to the wife at her marriage, or acquired by her afterward, when reduced to possession, becomes the property of the husband by reason of the marital relation, unless the property is the separate estate of the wife, or unless the matter is controlled by a marriage agreement. See 30 C.J. 530 et seq.; 13 R. C. L. p. 1051 et seq.; Alston v. Rawles, 13 Fla. 117.

Under the civil law of Spain that was in force in the provinces of East and West Florida at the time of the cession of such provinces to the United States in 1819-21, married women in the provinces held their own property separate from their husbands. Property owned by women at the time of their marriage remained their own. Property acquired by married women during coverture 'by lucrative cause or title,' viz. by inheritance or donation, remained their own. Property acquired during the coverture 'by onerous cause or title,' viz. by purchase or for value paid, was held in ganancial right by husband and wife subject to the right of partition, so that the wife could hold her part separate from her husband. MaGee v. Doe, 9 Fla. 382, text 398; McHardy v. McHardy, 7 Fla. 301; 27 C.J. 1107; 31 C.J. 20, 22; 21 Cyc. 1655; Civil Law of Spain and Mexico by Schmidt, book 1, title 1, chapters 3 and 4; 1 White's New Recopilacion, p. 60 et seq.; Commodores Point Terminal Co. v. Hudnall (D. C.) 283 F. 150; Id. (D. C.) 3 F.(2d) 841.

When the Spanish provinces of East and West Florida were transferred to the United States in July, 1821, [1] pursuant to the treaty of cession dated February 22, 1819, and proclaimed as ratified February 22, 1821, the civil law of Spain was in force in the provinces. But upon the transfer of the possession of the ceded provinces by Spain to the United States, the laws of the latter country became operative throughout the ceded territory. A. L. & D. Co. v. McRae, 86 Fla. 393, 448, 98 So. 505; page 4762, Comp. Gen. Laws Florida 1927.

While the law of the territories of the United States may in general be composed of applicable principles of the common law where such principals are not inconsistent with the organic and statutory laws of such territories or of the United States, yet, in order to avoid confusion and hardships that would arise from a sudden change of laws affecting personal and property rights, some rights acquired according to the civil law that was in force in East and West Florida at the time of the cession to the United States were recognized or validated in the ceded territory by laws enacted or by authority exercised under the United States. See Proclamation of Andrew Jackson, Military Governor of East and West Florida, dated July 17, 1821; page XIV, Laws of Florida 1823-1825; page 4841 et seq., Comp. Gen. Laws Florida 1927, page 84 et seq. Compact Edition. See, also, section 6, art. 16, Constitution of 1838-39; section 5, art. 15, Const. 1861; section 6, art. 16, Constitution 1865.

Among the provisions of law recognizing or validating rights acquired under the civil law in force in the ceded provinces are those relating to the property rights of married women and their power to own and convey or mortgage their separate property as such...

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